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Category Archives: Law School

I’ve been told by more than a few lawprofs, sotto voce, that full time academics hate teaching ethics, or professional responsibility as it’s called in some law school, as it’s considered beneath their intellectual dignity. They do so with a gun to their head, and a plan to get in and out as quickly as possible.

The baseline for law students is that this is a required course, to be endured on the path to lawyerdom rather than to learn what it means to be a lawyer, and how they are to comport themselves as lawyers in the future.

At PrawfsBlawg, Paul Horwitz writes about how he started his professional responsibility class this year. Apparently, he drew the short straw and got stuck with the gig, though Horwitz isn’t one of the profs who told me he despises teaching the course. Indeed, for all I know, this is his favorite course to teach, and he does so with fervor and flair.

We addressed some of these issues at the end of the semester, and that was useful in bringing things to the surface, but I thought the discussion ultimately came too late. This year, I decided to start with these issues. For some discussion by other legal ethics professors, see this post. (I had already decided to do so last year, so I don’t think the recent fusses over the Campos blog had too much to do with it. But like all of us, I sometimes don’t get around to doing what I plan to do, and certainly the recent discussions encouraged me to make sure it happened.)

Thus, on the first and second days of class, I assigned the students some non-casebook materials: 1) a link to the Campos blog (not the optimal source of information, in my view, but I wanted students to have a sense of the emotions and anger involved, not just the facts); 2) a link to my own discussions of that blog; and 3) a link to the William Henderson article in the ABA Journal about paradigm shifts in the legal profession.

For a solid hour and a half, we discussed a host of issues: why students came to law school and what they expected to get out of it; what they now thought; debt issues; whether students relied on bad information about job prospects, median salaries, and so on; what their own job prospects are; whether their opinions about law school, the legal profession, and their own future as lawyers have been altered or chastened; what they think are right or wrong with legal education in general, and Alabama’s law school in particular; and other subjects. It was a fairly no-holds-barred discussion, and the findings were interesting, though not wholly surprising.

For a solid hour and a half? Sorry, but that stuck out, reminding me of the old college test joke, “explain WWII, use both sides of the paper if necessary.”

What also stuck out is that this discussion, in light of what Paul Campos, the notorious scamblogger who has been vilified in the academy, has to say, was between law students and their professor, No power imbalance there. Nor is there much of a chance that law students would appreciate the nature of the problems they would face in the future, aside from obvious joblessness and debt, or the professoriate’ role in their lack of preparation to practice law.

Despite the inherent flaws in the design of this discussion, Horwitz came away with some interesting ideas:

[W]hat I found striking was the sense among my students, not that they would never receive a job in general or a legal job in particular, but of what that meant for them. They had never seen law jobs as a path to wealth, but now they no longer saw them even as a path to the relative security of the professional upper middle class.

We use the words “wealth and prestige” as a bit of a hyperbolic description of young lawyer’s vision of the “deal” they made when they entered law school, a means of explaining why they feel to badly treated, and hence justified in taking liberties with ethics. Horwitz’s description is more nuanced and, in reality, more accurate. It’s not about great wealth, but about a comfortable and secure future in the “professional upper middle class.” The price of admission is about $150,000 and three years of your life. It’s not too much to expect in return, is it?

According to Horwitz, one of the reasons he decided to move this discussion to the head of the class was something he spotted the year before:

I found that more students than usual tended to say they would choose an unprofessional or dishonest course of action, for fear in any given situation that they would lose their clients or their jobs.

This, of course, goes to the core of the course and what is required of us as lawyers. More importantly, this is what I’ve been seeing and writing about in the cadre of young lawyers who can’t get jobs and instead manufacture fraudulent internet personas designed to gain an income, whether in the law or the cottage industry of social media legal marketing.

And so I read Horwitz’s lengthy post to see what became of this trend toward the dishonest. His answer was to make a deal with the devil.

So I made a kind of bargain with my students. For my part, I have told them that we will continue to discuss these issues and to think about how they affect their views on legal ethics. I have also promised that I will serve as a conduit and an advocate, making sure that my colleagues and the administration know of their dissatisfactions and about the things they would like to see change. I have asked them in return to commit to the class: to do their best to ask seriously how they would act, and how they should act, in various professional responsibility circumstances, rather than simply disengaging from the class or offering pat or cynical answers, and to participate actively in class discussion.

My reaction isn’t quite disappointment, for that would assume that I expected something better. Rather, I found this to reflect the wholesale abdication of responsibility to impart the fundamental demand that lawyers act ethically and honestly. This isn’t a trade-off or a bargain. This doesn’t require law students agreement or approval.

As shown in comment to Horwitz’s post, other lawprofs were impressed with his efforts and blew him kisses, even though some trivialized the law students’ concerns as just typical law student griping. Some anonymous comments from young lawyers castigated his failure to address the elephant in the room, that law schools induce students to attend by fraudulent placement figures, thus creating an aura of fraud that the students carry forward into practice.

For my part, ethics and honesty are not a choice. They aren’t a give back for a lawprof who champions their cause, or even transmits their message. They are not negotiable. Ethics and honesty are the sine qua non of being a lawyer, and yet the lesson taught here is that they are situational or only required when students are satisfied that they were given value in return.

As I constantly ponder what bone in their head tells some young lawyers that they can fake it ’till they make it, fabricate their persona for the purpose of scamming a buck out of the unsuspecting, sell themselves by strutting down the boulevard in hot pants, it really hadn’t sunk in that they start with the message taught them in law school.

No wonder they laugh at old curmudgeon’s like me, who they say “don’t get it.” While taking a course in legal ethics may be required, having them no longer is.

He was far more popular with practicing lawyers and law students, but then, we don’t get a law school paycheck or judge our manhood by the number of articles published in law reviews.

Naturally, some anger and animosity has been directed toward Campos from others in the Academy, but Brian Leiter, channeling Nancy Grace by giving him the epithet “scamprof” (it could have been “tot mom” except he’s not a mom and law students aren’t tots), does what no lawprof since AnnBartow has been able or willing to do. He got nasty.

ScamProf is the failed academic who has done almost no scholarly work in the last decade, teaches the same courses and seminars year in and year out, and spends his time trying to attract public attention, sometimes under his own name, this time anonymously. These are important facts about ScamProf, since he is indeed scamming his students and his state, and his initial posts were tantamount to a confession that he’s not doing his job.

Ouch.

A colleague from Penn writes:

I don’t know who this jerk is, but I appreciate you calling him out. I clicked through to his posts and felt the urge to throw something. I bust my butt preparing for class and educating myself deeply in my fields (and, indeed, refuse to teach any class in which I don’t consider myself highly qualified), and students clearly understand and appreciate those efforts, but this kind of recklessly expressed cynicism can undermine an enormous amount of good work in the creation of a cooperative and engaged learning environment. It’s the functional equivalent of writing about how every man on the planet regularly violates the terms of his intimate relationships and pushing out that message with the aim of making even the happiest partners and spouses suddenly experience doubt. What a jerk.

This captures rather well why ScamProf is so offensive to those who actually do their jobs.

Any numbers on how many “actually do their jobs?” Names, maybe? Salary data?

ANOTHER: A colleague at Maryland writes: “Scamprof is easily explained by the well known proverb that ‘a thief thinks everyone steals.’ Don’t let up on him.” By the way, several readers tell me that ScamProf moderates comments, and will not approve those that are too critical.

Several readers told me he eats babies. Don’t you believe me?

For Paul Campos is, of course, most notorious in the legal academy for going on the O’Reilly Factor--yes,the O’Reilly Factor–to call for Ward Churchill to be fired for his offensive political opinions (long before any allegations of academic misconduct arose). And this wasn’t an anomaly: he also called for Glenn Reynolds (Tennessee) to be sanctioned by his university for his offensive political opinions. Fortunately for Professor Campos, his contempt for the First Amendment rights of state university professors do not constitute binding precedents on the courts, and I am confident his university won’t sanction him for his irresponsible speech. They should, however, launch an investigation into whether he is performing his duties, since his blog is tantamount to an admission of dereliction of duties and his ‘scholarly’ record is prima facie evidence of failure to do his job as a professor at a major research university.

The O’Reilly Factor? That’s academic heresy per se, and with pretty good reason, but this has what to do with the law school scam?

I understand that Paul Campos, our ScamProf, is feeling desperate, given the hole he’s dug for himself. His colleagues are furious, he was already an embarrassment to his institution, and now he’s added fuel to the fire by openly insulting his colleagues. But whereas the facts about Campos that I’ve adduced (he disputes none of them, for obvious reasons) are highly relevant to understanding why he would lie, exaggerate and engage in reckless generalizations about his professional colleagues, the facts and non-facts he adduces about me are just irrelevant ad hominems.

From what I see at inside the Law School Scam, Campos has nothing but kind words for his distinguished colleague, Brian Leiter.

It is thus with a certain sadness that I note one of the leading lights of contemporary legal academia, Professor Brian Leiter, the Karl N. Llewellyn Professor of Jurisprudence and Director, Center for Law, Philosophy, and Human Value, at the University of Chicago Law School, has, I have been told, chosen to point out to the world that, in comparison to himself, I am a poor scholar and have reprehensible work habits, rather than responding to any of my arguments about the state of the contemporary law school.

Having spent a fairly good amount of time reading the words of lawprofs so that you don’t have to, there is one thing that stands out above all else in this flagrant display of outrage. What’s particularly impressive about all of this is to see some law professors (with the obvious exception of Ann Bartow) finally grow a pair and start using language that means what it says. It’s so . . . manly.

But I do offer this word of caution to Brian Leiter: When you piss into the wind, expect to get hit with some spray. No matter how much of a jerk Paul Campos may be, neither Holocaust deniers nor lawprofs are going to be warmly received by merely pretending that everything is hunky dory aside from this O’Reilly Factor lover.

Now strip off your clothes, step into the mud and start rolling. We’ll get the popcorn. And maybe this airing of harsh words will end up producing a wee bit of honesty about how the Academy has completely screwed the pooch on law school.

Between the law students who feel betrayed by the lies told to induce them to sign up for an extremely cool and invariably profitable future in the law, and the anonymous lawprof who has undertaken to reveal the inside of the law school scam, some in the Academy are beginning to get the sense that maybe, just maybe, they aren’t doing as great as they believe they are.

Adding to the mess, Bruce MacEwen has rubbed salt in the wound in his response at Adam Smith, Esq.:

But the real moral I take away is truly sad. Exposed as never before to sincerely felt discourse (factually misguided, inconveniently timed, or otherwise–let that debate begin!) in the open air of the online community, the Academy has chosen denial, distraction, and blaming the messenger.

Oh, snap. One lawprof whose shtick is rational markets, Larry Ribstein, has been pushed too far by the criticism and lashes out. He addresses the three issues in play.

In a nutshell, MacEwen endorses what he says are LawProf’s three primary points: that the rising cost of legal education is out of sync with its expected value; that law professors are overpaid (based on LawProf’s findings that a law review article costs $100,000), and the “inarguable” “irrelevance of what law schools teach to what it takes to actually practice law.”

With regard to the first two, Ribstein resorts to his rational market approach, meaning that law schools can’t get away with such nonsense if the market didn’t allow and support it. Of course, if one doesn’t believe that everyone makes rational choices, as any rational person knows, then the argument falls apart.

What is most revealing for the rest of us, and perhaps the scariest insight I’ve ever seen coming from the depths of the Academy, is Ribstein’s vision of the future of law school.

Assuming legal education should be changed, what should law schools do now, or be allowed to do in a deregulated regime? MacEwen and LawProf are both absolutely sure about the irrelevance of modern legal education to the job market. Presumably they would want law schools to be more practice-oriented.

But MacEwen/LawProf are stunningly over-confident about their ability to see where legal education should go in a world in which the market for law-related jobs is rapidly and fundamentally changing. . . In brief, for reasons discussed in Death of Big Law, the high-end jobs in conventional practice are disappearing and not just experiencing a cyclical decline. Meanwhile, the lower-end jobs are being replaced by technology, a phenomenon that will accelerate rapidly with the inevitable onslaught of better technology and deregulation.

So the good jobs are going to disappear. And the lousy jobs are going to disappear. While leaves (recalculating) no jobs?

If I’m right, many traditional lawyer jobs will be obsolete. I predict that law-trained people will be able to prosper in this future only by becoming legal architects and engineers who create new devices and solutions rather than the mechanics who apply the devices of the past that many are today. This means that if law students are trained only for today’s version of law practice they will not be adequately trained for the future in which they will be competing. Which in turn means that the MacEwen/LawProf ideas about what law schools should do, about which they are supremely confident, would lead legal education into its economic grave.

Let’s see if I understand this: So law school today fails to prepare law students for the practice of law. Ribstein predicts that in the future, there will no longer be a practice of law as it has existed in the past and still exists for the time being, to be replaced by robots and computers, so to catch up from the past failure by teaching them what they should have been taught would be inadequate training for a future of law that no longer involves practice.

Ribstein’s vision of the future of law school is to train “legal architects and engineers” instead of “mechanics.” What the heck does that mean? Who wouldn’t prefer to be the architect rather than the grease monkey of the law? But is Ribstein already shilling for the Overlords?

Amazingly, the argument appears to be an adoption of the futurist view that law will be reduced to binary application, more of the fill-in the-blanks forms and paint-by-numbers that is being heavily promoted by the nice folks who create the forms and want the public to buy them. Even though law schools fail to teach students how to practice now, Ribstein’s argues, “so what?” and wants to leap over law as it exists in favor of law as he predicts it might be.

Remember the 20th Century predictions of life in the future, where we dressed like Buster Crabbe and flew around like the Jetson’s?

And Ribstein is willing to stake the future of the law on his fantasy? We’ll just leap over the preparation of students to practice law because there will be no jobs (note, not that there will merely not be enough jobs to subsume the excessive number of students being churned out) and start producing legal programmers to run the Supreme Court of Computers and Pre-printed Forms?

The expectation that things will change is hardly far-fetched, but change happens organically, despite all the forces trying desperately to sell us on their cutting edge shiny stuff that will absolutely, definitely be the future of the law. And while the kids and fools rush around in circles adoring each new toy, the vast majority of lawyers will use what adds to the practice and laugh off what doesn’t.

But trying cases, with or without an iPad, will still require lawyers who get the rules of evidence and the ability to cross-examine a witness. Understanding a client’s needs will still require a lawyer to appreciate the varying issues and means of addressing them, not to mention the ability to ascertain a client’s purposes and hold the occasional hand. None of this will be replaced by computers or forms. It will change over time, just as we’ve loosened our grip on fountain pens, but we still use pens.

As lawprofs may finally be coming to grips with their massive failure to teach students how to practice law, whether because they have no clue themselves or their love of theory and inter-disciplinarianism blinds them to such nasty pursuits, the answer isn’t to rush blindly to the next cutting edge theory propounded by legal futurists.

How about we just focus on giving students a little value for the money by teaching them the tools they need to become practicing lawyers? We’ll deal with the future when it comes.

Its bad enough that the third year of law school is filled with such elective educational opportunities as The Law of Pogo Sticks and Animal Husbandry Law. Hey, you never know when this knowledge will come in handy.

For non-lawyers, bear in mind that every person with a license to practice law appears, outwardly at least, to have the minimum competence to represent people in any practice area. We licensed as generalists, regardless of what we actually practice, and held out to the public, with the state’s seal of approval as capable serving as a lawyer. Reality be damned.

But at least in the the first and second year, schools ram the basics down students’ throats so they have at least a passing familiarity with basic legal concepts. Or maybe not.

At PrawfsBlawg, Chad Oldfather questions whether he should tailor a section of his required evidence course for non-litigators.

In addition to teaching first-year courses, I also teach Evidence. At Marquette, as I’m sure is the case at many schools, it’s a required course. That, of course, means that many of the students have no intention of ever setting foot in a courtroom. My colleagues and I have kicked around the idea of tailoring one section to those students. That section might, for example, devote more time to privileges and less time to things like the Confrontation Clause, and would otherwise serve to highlight some of the key evidence-related issues that non-litigators need to be mindful of.

Zooks. My gut was that students at year 2 may have no intention of ever setting foot in a courtroom, but then things change when the job they get requires otherwise, or there’s no job to be had and they decide to strike out on their own. What then? Plans change. Needs change. If they have a ticket, they’re supposed to know the deal.

The first comment to the post, sadly anonymous, was a screamer.

I take it that this is a sincere question, but I find it hilarious all the same. Tailoring an Evidence class to meet the “needs” of people who think, as second-year students, that they won’t ever set “foot in a courtroom”? How thoughtful! But why not do that for every class? It could be like college all over, though instead of “Physics for Poets” (or whatever), we could have “Patents for Public Defenders” and “Antitrust for Aspiring Academics.” The possibilities are truly endless. And even better, no one would ever have to master material they didn’t believe, as nascent attorneys, they’d use. Perfect!

You’ve got to love Patents for Public Defenders. What a perfect means of adapting the law school curriculum to meet the needs of today’s students, requiring nothing more of them than what they want to learn. And this, coming not from students who feel that lawprofs are already disdainful of their rights, but from a lawprof who feels that teaching basic law is too onerous a burden.

Oldfather (great name, no?) responds and explains:

The idea is not, of course, to overlook any of the fundamentals of evidence law. But consider: there are some schools where Evidence isn’t a required course at all, there are many ways to structure and create areas of emphasis within an Evidence course without assigning a label to it (e.g, some of us might do lots of Confrontation Clause, others of it none of it), and students make all sorts of choices about courses to take that may not be completely informed by a strong sense of what they’ll end up doing. So it hardly seems silly to say – to take the idea even one step further – here’s an Evidence section that will emphasize things likely to be of value to criminal litigators, here’s one that will do it for civil litigators, and here’s another that will do it for those who deem themselves unlikely to set foot in a courtroom.

Curiously, the best argument for limiting a broad and basic course is that some schools don’t bother with it at all, and some lawprofs already teach it poorly. (Aside: It would help law firms if there was a list of schools that neglected basic legal education, so they could make sure to never hire one of their graduates.} Since students already leave law school having never used the word hearsay properly, who not institutionalize the failure? Oldfather’s retort concludes with the obligatory whine about the harshness of the criticism.

Calling it hilarious strikes me as more than a little strong.

Of course it does, Chad,since you’re proposing the idea as a solid concept, and anon thinks it’s a very bad idea. There are far worse things he could have said, and hilarious doesn’t seem particularly strong at all to me. But then, we all have different sensibilities, and no description (hyperbolic or otherwise) is going to receive universal approval. Smart guys like lawprofs ought to realize that. And toughen up enough to hear quasi-strong words without getting all teary eyed.

The underlying assumption, that law students’ best laid plans for their future should dictate what they learn in law school, is both wrong and dangerous. While some will go on to live out their well-planned careers, many won’t and will find themselves in places they never dreamed possible, like courtrooms. Will the client at their side be okay when they learn that their Evidence class at Marquette didn’t cover the Confrontation Clause?

My experience in discussing litigation issues with in-house counsel is that they are often at a significant deficit already in understanding that nuances that distinguish a winning tactic from a loser because of their superficial understanding of how things work. These are lawyers who never intended to step foot in a courtroom, but their careers aren’t wholly dedicated to transactional work and they are expected to have a functional knowledge of litigation in order to safeguard their employer’s interests and oversee outside counsel’s efforts. It often requires remedial evidence, or statutory construction, or ConLaw, to help them to understand why some tactics work and others are nuts.

But for the public, those who believe that anyone with a license to practice law is as good as any other, or from a slightly more sophisticated perspective, is at least minimally competent to accept the representation of a person, the failure to teach the basics in law school turns the license into a lie.

No one should come out of law school with less than a functional knowledge of the basic areas of law. And if the saving argument is that law schools no longer require students to take basic courses like Evidence, then how can they justify cashing these kids’ tuition loan payment checks at all?

Over at MoneyLaw, Tom Bell asked whether, and to what extent, class participation should count toward the grade in his Property Law class. Nowhere in his post does Tom explain why he persists in doing so, instead providing the arguments against his practice.

I’ve tried in the past scoring class participation on a more subjective basis, marking the seating chart immediately after class to indicate which students has won class participation points for contributing to discussion of the assigned materials. Although no student ever challenged that system for fairness, it admits the claim all too easily; I prefer more objective measures of performance. Also, I found that scoring students during or after each class, based on some rough measure of “added to class discussion,” invited pestering along the lines of, “Did you count my performance, today, Professor Bell? I didn’t see you mark the sheet, and you confess to being absent-minded.” Fie on that.

I pushed not merely for its continuation, but expansion.

A radical idea: Make class participation, defined as actively answering questions using the Socratic method, and doing so correctly, as 50% of the grade. Watch them stick up their arms, demand to be called, argue why they’re correct and someone else isn’t, defend their answers from detractors, and generally conduct themselves in the way they will be expected as lawyer.

I guess I went too far, as Tom replied,

But I would not want to make so much of the grade rely on my idiosyncratic judgements–judgements perhaps tainted by knowing whom I’m grading. Despite its sometimes heartbreaking effects, I favor blind grading.

Lawyers face the idiosyncracies and biases of judges daily, yet are reared in an atmosphere of supposed fairness. Granted, blind testing removes the taint of bias, but to be objective, it needs more than to be free of subjective idiosyncracies. It needs to be an accurate reflection of something that matters to lawyers.

Much of the committee’s LSAT debate has focused on the proper role of the ABA in the regulation of law school admissions, said Loyola University Chicago School of Law Dean David Yellen, who sits on the standards review committee.

“I think an accrediting body ought to ensure that law schools are producing students who can enter the practice,” he said, noting that he personally is on the fence about the LSAT requirement. “Is taking a standardized test the only way to determine if someone should be able to go to law school? Schools ought to be able to decide how they want to admit students.”

And what does taking the LSAT have to do with producing students who can enter the practice? After pondering this question deeply for a few minutes, the answer is: absolutely nothing. It would be cynical to suggest that this is merely a bait and switch, a grand gesture to take our eye off the ball, that regardless of the criteria used on the way in, it has no applicability to what they do with these fertile minds while in their care, and nothing whatsoever to do with how they come out the other end.

You would think that law schools would make fundamental changes to their programs in the wake of the job crisis, fearing that law degrees might someday be assessed like a Ph.D. in poetry — soul-satisfying but potentially impractical. A few have responded dramatically, but most have held fast to the traditional law school model or made superficial changes. Why the resistance?

Lawprofs have long sneered at the notion of law school being a mere “trade school” rather than a place “to investigate and reflect on the history, animating principles, normative failings, etc., of our craft and tradition (our learned profession).” Is it better to get rid of an objective test and put it in the hands of more reflective folks?

It was always my understanding that the LSATs assessed, at least in part, the takers’ aptitude for logical thinking, together with the a few of the skills, like reading comprehension, that would help one get through law school. Based on what I read in the blawgosphere, it hasn’t done a great job. Lawyers seem long on emotion, short on reason, and desperate for business.

Is this a product of a flawed Law School Admissions Test? Hardly. Just between us, it doesn’t take a genius to be a lawyer. In fact, brilliance can be a definite handicap. But even the brilliant can be taught to be adequate lawyers with the right methods.

I’ve got no problem with scholars teaching law students poetry under whatever guise they like, so long as students (or their parents) paying big bucks for the privilege don’t mind wasting their money. But if they can’t persuade a lawprof that they’ve got the ability to practice law, despite his idiosyncratic ways and biases for and against certain students, then they will fail at a basic task of lawyering.

It doesn’t matter what criteria is used to let them into law school if they’re spewed out the other end without the ability to practice law. It doesn’t matter if law schools don’t tell those students who attend that they should stop wasting their money, or assuming debt, as they have no future in the law. It doesn’t matter if they love the poetry of the law when the only place they get to recite it is in a law school classroom.

Whether law schools make the LSAT optional means nothing to the practice of law. Whether law schools fess up and admit that they’re teaching poetry to law students is another matter. And that the ABA thinks it can get away with such provocative moves, while naming rights to buildings at new law schools are auctioned off, makes clear that it has yet to come to grips with the problem.

Be unfair, Tom Bell. Life is unfair. The law is unfair. Teach them how to deal with it, to overcome it. Regardless of how they got to your class, at least they will leave knowing something useful for their future.

To anyone who’s graduated from law school in the past few years, read a blawg or can walk and chew gum at the same time, the evidence is overwhelming that becoming a lawyer will not guarantee you wealth and success. Yes, mommy lied. Get over it.

The American Bar Association has finally decided to bring up the rear. warning Muffy and Buffy that law school isn’t as sweet a route as it once was. To begin with, they have just figured out that law school isn’t cheap.

Obtaining a degree from an ABA-accredited law school is not cheap. Over the last twenty-five years, law school tuition has consistently risen two times as fast as inflation. Consequently, the average tuition at private law schools in 2008 was $34,298, while the average in-state tuition for public law schools was $16,836. When one adds books and living expenses to tuition, the average public law student borrows $71,436 for law school, while the average private school student borrows $91,506. Many students borrow far more than $100,000, and these numbers do not even include debt that students may still carry from their undergraduate years.

And, they add, it’s not likely to get any cheaper. At the same time:

Many prospective law students are already familiar with the steep price of a legal education. What many do not know, however, is that these costs often exceed the expected return on their investment in the job market.

For those who couldn’t stay awake through their economics lectures, this isn’t a good thing. As investments go, it’s generally preferred that they earn more money than they cost.

Although numbers are not available yet, many members of the class of 2010 and 2011 may graduate without a job, and those who are lucky enough to find employment likely will collectively have lower salaries than their predecessors. In short, the job market is more challenging than it has been in many years, as well-paying jobs are in short supply.

So when they’re talking about cost exceeding earnings, they really mean unemployment. Generally speaking, an income of zero is never something to strive for, no less invest in.

In a section entitled “The Bottom Line,” a very cute economic reference for those who didn’t catch it, they conclude:

Thus, many students start out in a position from which it may be difficult to recoup their investment in legal education. Even students who do ultimately prosper over the course of a career face difficulties from high debt loads during the beginning of their career. High debt can limit career choices, prevent employment in the public service sector, or delay home ownership or marriage. In short, going to law school can bring more financial difficulty than many law students expect.

Buried in there is the good news, that people too stupid to figure all of this out are unlikely to marry and thus procreate, saving us from generations of lawyer welfare, a cycle no society can endure. But there’s the positive spin to the otherwise ugly story.

The lack of financial return, of course, does not mean that it is not valuable to go to law school. Many lawyers receive intrinsic benefits from a satisfying career that cannot easily be quantified. It does mean, however, that students should think twice before going to law school simply for the money. All too often, students who bank on reaping a positive financial return from law school lose out.

The point isn’t novel, that law school can be a fine place to go if the purpose is to actually become a lawyer rather than to gain wealth and success without suffering the late nights of med school. Of course, even those young lawyers who truly want to practice law share a common need with those who are only doing it for the money and prestige: They like to eat.

Missing from this otherwise well-worn analysis is the harsh fact that the cost of three years of law school (which, remember, is only going up because, well, law school is a cash cow for universities and law students are foolish enough to keep coming and paying with the blessing of student loans), plus the opportunity costs of three years sitting in a classroom listening to lawprofs who disdain the actual teaching of law in favor of critical scholarship based on the Harry Potter series, does nothing to produce a career that can feed ones children.

Even if you really, really want to be a lawyer, your kids are going to want to eat. Every day, And they’re going to expect you to make enough money to feed them. Loving the law is nice (no, really it is), but if those who love being a lawyer can’t earn enough money to both pay off their loans and feed the kids, then we have an institutional problem and some very hungry kids.

As thoughtful as it is that the ABA has finally decided to hop on board the train that left the station a couple of years ago, nowhere in its warning does it mention its role in this dilemma. Too many law school. Too many law students. Law porn enticing the foolish to come closer to the rocky shoals with deceptive numbers of happy and wealthy graduates produced by kindly deans who need to bulk up their numbers to cover the cost of flights to lawprof symposiums on how to make the law students’ experience happier.

The ABA has the power to require law schools to put a surgeon general’s warning on their brochures: Attending law school could be harmful to your financial health. They don’t. The ABA could stop authorizing new law schools, because maybe there aren’t enough starving lawyers already. They don’t. The ABA could restrict the number of seats available through the accreditation process. They don’t.

The analysis offered by this warning, sadly, fails to address a more pressing problem within the profession, that there are already a large pool of lawyers who are drowning. Practicing lawyers aren’t earning enough to support their debt and, even worse, feed their children. This is the ugly little secret that few really want to admit; Many lawyers would rather pretend their doing great than concede that they are dying out there, desperately praying that the phone will ring today and bring in a case that will cover their nut and maybe, just maybe, leave enough left over to pay the credit card bill for those Christmas presents.

They’re sitting around scratching their heads, wondering how they can be such good, dedicated, caring lawyers, and can’t make enough money to survive. You think it’s not happening? What do you think is driving so many lawyers, filled with bravado, to put on their hot pants and walk the boulevard? Whining about their desperation isn’t going to win them any business, but they sit in their lonely offices wondering what went so wrong with their plans and dreams that they can’t manage to feed the kids.

Maybe the ABA will form a committee to study the problem and come out with a white paper on the pressing issue of starving lawyers. Now that they’ve solved the law student problem, they’ve got the time on their hands. Plenty of free time.

I’ve personally heard this a thousand times. It’s probably the most common response to the question. And it’s dead wrong.

Apparently, it doesn’t sell any better at Yale Law School than it does with me. According to Asha at (203) Admissions Blog, this raises a red flag in the personal statement of applicants.

In case you’re one of the fortunate applicants who isn’t familiar with this theme, the “I Love to Argue” personal statement goes something like this: first, the applicant starts off with some anecdote, usually from preschool, which amounts to having a temper tantrum over something really dumb. The adult in said anecdote (usually, but not always, the mother), instead of giving the applicant a good spank, is totally impressed by the temper tantrum and says, “You are going to be a great lawyer!” This forms the basis for the applicant’s desire to apply to law school sixteen years later.

The corollary rule is that you are not going to be a great lawyer just because Mommy said so. Mothers across America will be outraged.

Experience of late, unfortunately, suggests that far too many law schools have admitted students because they love to argue. The basis for this statement is that so many argue up a storm, argue, argue, argue, and haven’t the slightest clue that mere disagreement is utterly meaningless.

Not only is this a matter of some concern in attempting to deal with the “I love to argue” crowd, but how are they to represent clients if their argument revolves around their personal pronouncements of disagreement.

Prosecutor: Your Honor, the evidence against the defendant, both physical and testimonial, is overwhelming.

Defense Lawyer: No it’s not. I don’t think so.

Well, okay then. I mean, as long as you disagree, then what are we wasting our time for? The source of this overestimation of the value of one’s personal opinion, according to Asha, is dear, old Mom.

Why is this theme so wrong? Let’s first start with your mom. I’m sure she is a very nice person, but when it comes to law school admissions, please note that she has zero credibility. Don’t mention any assessment she makes about your potential lawyerly ability in your P.S. Ever.

This means that your having been reared on the notion that you are wonderful, brilliant and capable of doing anything, according to Mommy (or Daddy, since Daddy’s do this too), may have made you feel warm and fuzzy, but doesn’t win any points outside of the kitchen.

Asha goes on to explain that self-serving argument over anything and everything is a character flaw rather than confidence builder. It “suggest[s] to the reader that you are reactionary, a poor listener, unable to relate to different perspectives, and that you are generally an unpleasant person to be around.”

More importantly, ILTA shows a shallow understanding of what being a lawyer is about. You see, arguing is not the hallmark of a good lawyer. It’s true that many lawyers are skilled orators, but that doesn’t mean that they argue. In fact, the best way to find yourself with a losing case streak and a dwindling client list is to constantly argue with other lawyers or worse, the judge hearing your case. . . And if you’ve ever watched an appellate case, you know that the only people who should be arguing (if you’re doing your job right) are the hearing judges, who are going to pick apart your case and ask you pointed and potentially snarky questions. You politely answer them.

The first step in accomplishing this is to be capable of distinguishing between a viable position, supported by reason and evidence, as opposed to “stick your head in gravy” or “well, that’s what I think.”

It’s not that lawyers aren’t full of personal zeal, knowing well who to blame for the evils of the system and which side their bread is buttered on. There is plenty of zeal to be had. What there isn’t is much thoughtfulness to back it up. Perhaps this is one of the reasons for the ever-growing preference to sing with the choir, where no one expects thought but only support when attacking the common enemy.

Zeal, however, does not a lawyer make any more than ILTA. If anything, they seem to go hand in hand, the former bolstering one’s belief that the latter is all it takes to be a lawyer. Challenge everything that doesn’t conform with your zealously held beliefs. Give nothing any real thought. If something doesn’t meet with your deeply held beliefs, reject it. Never, under any circumstances, give it any further thought. Never try harder to understand what you don’t, at first, grasp.

The corollary here is that such lawyers believe they are entitled to demand, when they don’t grasp something, that it be explained to them, and to their satisfaction. They love to argue. This does not make for a good lawyer.

It is fundamental to our efforts that we be capable of providing sound argument to the judge, and when the judge picks apart our case and asks pointed and potentially snarky questions, we answer them politely. There’s a reason for this. The judge is the decision-maker. If we fail to persuade the decision-maker, we fail to fulfill our function.

Lawyers who suffer from ILTA are not decision-makers, but narcissists. There’s no reason to persuade them; they get no vote. They have no place in law school, whether Yale or a good one. They have no place as lawyers either, because they can’t fulfill the function.

The article is really about funding the expansion of the Thormodsgard Law Library at the University of North Dakota Law School. It’s accreditation, apparently, is hanging by a thread, though the Legislature isn’t overly concerned. The funding showed up as number 14 on the top ten list of things to be funded. Fourteen isn’t good enough.

But the part that raises hackles isn’t the potential loss of accreditation of the only law school in the Great State of North Dakota. It’s the Dean’s explanation of what she sees as the qualities the school seeks to instill in its lawyers.

Strolling through the Law Library and down the stairs to the basement, Dean Rand goes on to explain that the qualities of cooperation and diligence are of the foremost importance to the UND Law School. “Those are the sort of skills that are essential to a UND educated lawyer; we want our lawyers to be part of the legal community, to work well with one another,” she explains. “We want for them to be able to foster a positive, cooperative environment within the legal profession. We are not cultivating cutthroat, merciless lawyers here. We are cultivating collaborative, talented lawyers.”

When in doubt, there’s always the false dichotomy for justification. Cutthroat or cooperative. Here are some UND law students discussing the choices:

As qualities go, society has put a premium on cooperation and consensus. It’s all the rage. And indeed, in some areas of life, its proper and productive. Just not law.

Our system is adversarial. It’s meant to be, with lawyers representing their clients’ interests even when those interests don’t overlap or coincide. When there are places where a meeting of minds can be achieved, hooray. We are not intrinsically uncooperative. We don’t seek out conflict, create problems where none exist. We need not be cutthroat.

But we must never elevate cooperation above the zealous representation of clients. It is not the goal. We do not sacrifice our clients to get along. We do not give away our clients’ interests or rights to be part of the “legal community, to work well with one another.” What the heck is Dean Rand thinking? What the heck is she teaching her students?

“Consensus” has reached near-mantra status. Not just among young lawyers, but all lawyers. No one seems to question that it’s better to work well with one another, to agree, to reach consensus, then to adhere to a belief. It’s better to settle a case, to take a plea offer, to reach a resolution, than to fight. All the fight has been sucked out of us. Everything is better by committee. There is no higher calling than to work well together.

As lawyers, we represent clients. Cooperation is fine to the extent it serves our clients’ interests. Beyond that, it’s wrong for us. Sometimes, there’s no choice but to fight. You can’t do that when your mindset is that working well together is the end in itself, the highest goal one can achieve. Lawyers represent clients. We do not necessarily play well with each other.

A thought for Dean Rand: Forget about funding expansion of the library. Get a high speed internet hook up and you’ve got everything you need. Instead, spend some time understanding what these students will be doing with the rest of their lives, and then stop trying to ruin them before they even start. Worry less about the ABA pulling your accreditation for library issues, and worry more about losing your ticket for the inability to grasp what lawyers do.

Oh? You’re right. It’s the ABA we’re talking about. No need to worry beyond the number of books in the library. Never mind.

So who is this Brent Newton, who feels that he’s got the juice to stink up the academy? Berman provides the first footnote to the article:

Deputy Staff Director, United States Sentencing Commission; Adjunct Professor of Law, Georgetown University Law Center and Washington College of Law, American University…. The opinions expressed here are my own and should not be attributed to any of them or to the United States Sentencing Commission. My perspective on legal education has been informed by having taught 32 law school courses – both doctrinal courses and “practical” courses – as an adjunct professor or lecturer while working as a full-time practitioner (including as a public defender for sixteen years).

Sixteen years in the trenches as a public defender before going to the U.S. Sentencing Commission is a pretty impressive resume. For a practitioner. But an adjunct, even at Georgetown law? Feh. A person of dubious distinction in the Academy. But having gotten his “rant” published, the “real” lawprofs are constrained to recognize it. Hear that sound? It’s the wagons circling.

Newton’s abstract is rather lengthy, but it beats the hell out of reading the whole law review article, and captures the idea.

In response to decades of complaints that American law schools have failed to prepare students to practice law, several prominent and respected authorities on legal education, including the Carnegie Foundation for the Advancement of Teaching, recently have proposed significant curricular and pedagogical changes in order to bring American legal education into the twenty-first century. It will not be possible to implement such proposed curricular and pedagogical reforms if law schools continue their trend of primarily hiring and promoting tenure-track faculty members whose primary mission is to produce theoretical, increasingly interdisciplinary scholarship for law reviews rather than prepare students to practice law. Such impractical scholars, because they have little or no experience in the legal profession and further because they have been hired primarily to write law review articles rather than primarily to teach, lack the skill set necessary to teach students how to become competent, ethical practitioners. The recent economic recession, which did not spare the legal profession, has made the complaints about American law schools’ failure to prepare law students to enter the legal profession even more compelling; law firms no longer can afford to hire entry-level attorneys who lack the basic skills required to practice law effectively. This essay proposes significant changes in both faculty composition and law reviews aimed at enabling law schools to achieve the worthy goals of reformists such as the Carnegie Foundation.

This is nothing new to practitioners, and has been the subject of numerous posts around the blawgosphere. But we’ve long been dismissed by the scholars as advocating turning law school into a “trade school” and ignoring higher order thinking and the philosophical considerations that distinguish law as a profession. They scoff at us, stupid trench lawyers, who have to work for a living because we’re too dumb to think important thoughts like lawprofs.

Thankfully, Newton is a mere adjunct. For those of you who don’t appreciate the significance of this, adjunct lawprofs are smarter than the average bear, but unworthy of tenure track. They may wear Harris tweed, but their elbows will never be adorned with leather patches. They are tolerated.

And so, the lowly adjunct must be taught a lesson. Rick Garnet at PrawfsBlawg goes for the throat.

Critiques like this are nothing new, of course, and (just as “of course”) have some bite. But, they can be (and I worry that Newton’s might be) overstated. Sure, we all remember (or know!) legal scholars and law teachers who seem way-disconnected from the practice of law and who we cannot imagine actually advising a client, putting together a deal, or arguing a case. But, the suggestion that — even at those awful, top-tier theoretician-factories that Newton has in his sights — faculty members who are hired not only to teach skills and doctrine but also to investigate and reflect on the history, animating principles, normative failings, etc., of our craft and tradition (our learned profession) “lack the skill set necessary to teach students how to become competent, ethical practitioners” seems too sweeping. The suggestion reflects, I suspect, a narrower-than-mine view of what it means to be a “competent, ethical practitioner” — a real lawyer.

Since this is nothing new, Garnet digs out an old critique, it being unworthy of wasting time on novel thought.

In my own view, for what it’s worth, it would be very sad if the lesson that law schools took away from all this is that they should become more narrowly technical and practitioner-preparatory in their approach. In my view, law school needs to be *more* interdisciplinary, and the study of law needs to be approached *more* like a humane discipline, than they currently are. The world does not need, really, blinkered-but-efficient-and-proficient technicians; it does need, though, lawyer-citizen-leaders who are well read, ethically sensitive, public minded, and theoretically sophisticated. There are huge problems with the profession, I think, but the answer to those problems is not, it seems to me, for law schools to resign themselves to the relatively unambitious task of providing fodder for the current (or post-crash) law-firm machine; instead, we need to produce people who have the ability and intellectual resources to transform the profession and help the profession to be what it should be.

This sounds, I admit, abstract and Ivory-Tower-ish (almost a caricature of out-of-touch tenured academics’ self-important musings), even elitist. I am uncomfortable with that. To be clear, I think *practicing* law is (or, at least, should be) both “fun” and “useful” (it has certainly be fun for me!). The disdain for everyday law practice that one sometimes encounters in the more rarified precincts of the academy is, at best, off-putting. My sense, though . . . is that the *practice* of law, properly and richly understood, is . . . more (deeper, bigger, harder) than I think people give it credit for.

No, I’ve got no clue what he’s actually say either, although it seems as if there’s something substantive to “the *practice* of law, properly and richly understood, is . . . more (deeper, bigger, harder) than I think people give it credit for,” thus demanding that lawprofs to “produce people who have the ability and intellectual resources to transform the profession and help the profession to be what it should be.”

But if you want dismissive disdain, look to the comments to Garnet’s post. From Brian Leitner :

The critique isn’t just overstated, it’s full of undocumented and baseless slander. Where are all those law professors who disparage practicing lawyers and judges?

And from Dave:

The idea is that law students should have a variety of different courses, some more practical and some more doctrinal, that contribute to a varied and rich experience of understanding the law. This is the antithesis of the notion that all law classes must be taught in the same way, and that either practitioners or theoreticians represent the sole acceptable model for a law professor.

Another major flaw of the article is its tendentious claim that adjuncts who are engaged in practice are better teachers than regular faculty. The evidence for this assertion is terrible for three reasons. First, it comes from only one law school (Houston), and there’s no reason to think that school is typical of all law schools. Second, perusal of the footnote shows that the difference may be trivial (.14 on a 5 point scale), especially because there’s no attempt to determine if it’s statistically significant. Third, and most important, there’s a real question whether student evals are a meaningful measure of quality teaching. Some studies have suggested that evals reflect cosmetic things like attractiveness rather than whether students actually learn. I[f] adjuncts bring a useful and important perspective to law education, but it’s inane to suggest that all adjuncts are systematically better than all regular faculty (and I think the reverse assertion would also be inane).

Then Ian Bartum.

Part of the difficulty I have with Newton’s piece (and others like it) is the seeming desire to conflate abstract and practical education, or at least to value the latter over the former. Both, in my opinion, are necessary parts of legal training: lawyers must be able to both write interrogatories AND think critically about the law and our social institutions. This is part of what separates lawyering from other trades. (And, not to belabor the point, but many law graduates will not spend their lives drafting pleadings. We also train statesmen–60% of the current senate and 3 of last 7 presidents–, judges, clerks, activists, academics, etc…)

The predicate for Newton’s article, that tenured lawprofs are obsessed with writing theoretical articles and have little or no practical experience, is utterly ignored by is detractors who attribute to themselves adequate, if not vast, practice experience and take no responsibility for law review articles like this serious doctrinal effort, Harry Potter and the Half-Crazed Bureaucracy

, 104 Mich. L.R. 1523. I shutter to think of the richness of the law without this.

But if you think things look dark at PrawfsBlawg, it’s nothing compared to the sly Professor Bainbridge, who understands that the most effective way to ridicule and diminish an idea is to take it as one’s own, then twist it until it’s unrecognizable. He begins by calling Newton’s article a “rant”, then goes on.

Maybe 20 years ago law schools valued things like high grades, law review membership, and prestigious clerkships. Not any more, however. As far as I can tell, what is valued these days are:

Ability to network with people you knew in graduate school that got hired last year

Having a PhD

Having multiple publications, even if they demonstrate the author’s utter lack of doctrinal knowledge or inability to do basic legal research

Knowing what Rawls (or Dworkin) would think of X

Being able to run linear regressions

Being able to run regressions about what Rawls would think about X

Not that any of this has a goddamn thing to do with the practice of law. Hence, while I disagree with the factual claim, it’s hard for me to disagree with the next part of Newton’s rant:

Could [a typical law school] professor whose primary scholarly interest is criminal law and procedure effectively prosecute or represent a criminal defendant at a felony trial? Could such a professor who writes law review articles about the First Amendment effectively represent a client in a civil rights litigation?

Of course not, Bainbridge argues, which is why law schools should go back to the old ways, hiring lawprofs based on “high grades, law review membership, and prestigious clerkships.” He then closes with a move that blew my socks off:

PS: I don’t use rant pejoratively. A good rant is a thing of beauty.

Followed by a video of Howard Beale in Network, driven insane, screaming he’s mad as hell and not going to take it anymore. That Bainbridge is tricky character.

Remarkably, not one lawprof squarely faces, no less addresses, the point, that law schools overvalue the theoretician for the purpose of promoting scholarship and undervalue the practitioner for the purpose of teaching students how to become lawyers. The host of strawman arguments aside, not to mention disclaimers that while other law schools may be like that, my law school is wonderful, try to land a tenure-track job in a law school if you’ve got any hard practical experience under your belt and see the reception you get. You’ll be warmly welcomed. Like the village idiot.

Whether you chalk it up to a rite of passage or a demonstration of the minimal degree of knowledge for the right to be responsible for other people’s lives, the bar exam must still be passed before you get to call yourself a lawyer. I believe it will be administered on July 27-28th in New York. Suddenly, all those smart-mouthed know-it-all kids who were busy telling lawyers all about their vision of the law are lying in their beds in the fetal position, praying that they don’t screw it up and reveal to the world, and their mothers, that they are are total, complete failures.

Calm down. Take a deep breath. Not because I’m sure you’ll do fine. I’m not. I don’t even know who you are, and you may well be the loser you fear you are. But getting yourself worked into a lather isn’t going to help you any. Nobody does better on the bar exam by hyperventilating.

Here’s the deal. Take the rest of the time off from your studies. If you don’t know it by now, it’s too late. No seriously, it’s too late. And chances are in your favor that you know more than you think. Most people pass the bar exam, and you fall into that category.

Your mind will work far better if you get a tan, take a swim, have a cool beer (preferably with a piece of citrus at the top of its long, long neck). Relax and trust that if you have not been a complete screw up all along, lying and cheating your way through law school, you’ve likely picked up a bit of knowledge. Not wisdom, mind you, but knowledge. And that’s all the bar exam asks of you. No biggie.

Cool heads work better. Worry too much and your brain will cramp. That could be painful. You don’t want pain, do you?

And no matter what your mother or Uncle Charlie thinks, anybody can blow the bar exam the first time. Anybody. No, I passed the first time, but that doesn’t mean that everybody does. Great minds, thinkers, people, lawyers fail the bar exam the first time. It happens. Stercus accidit (use this in an essay and you’re guaranteed an extra 2 points).

There is only one thing that you really need to know. While anybody can fail the bar exam the first time, nobody but a blithering idiot* fails it twice. No pressure though. Best of luck and enjoy your time taking the bar exam. Really.

* If you are reading this post and failed the bar exam twice, do not post a comment saying so or informing of great lawyers who failed the bar exam twice. Just trust me on this. Don’t do it.

As jobs for lawyers disappear in the mist, applications for law school have risen 7%, according to the National Law Journal. One explanation is that law school applicants are going underground.

“It’s absolutely consistent with every recession we’ve seen, with more people looking to graduate programs and into law school,” said Jim Leipold, the executive director of NALP, formerly the National Association for Law Placement. “Historically, it’s not been a bad strategy. I do think, for the immediate future, there are going to be fewer entry-level jobs at law firms.”

The other is that hope springs eternal. Though the Biglaw job market has tanked, applicants think they will be the one to grasp the golden ring.

Over at Above the Law, debate has broken out. Elie Mystal has taken the position that law school is a bad investment, apparently siding with the Law is for Losers contingent of the Slackoisie. This position is characterized by people who cared deeply about being lawyers provided they made big money, easy work and nothing to interfere with happy hour. For those who view law school as a financial investment, it’s certainly not a great bet.

David Lat, on the other hand, takes the opposing view and offers five arguments:

1. If a law degree is like a lottery ticket, remember: some people still win.
2. There are many great career options in law outside of large law firms.
3. What else are you going to do with yourself?
4. Not everyone graduates with debt (or with as much debt as some people think).
5. You get to put “Esq.” after your name.

While presented in his typical humorous fashion, Lat’s fifth argument, which he acknowledges is literally lame, is figuratively important.

The law is a learned and a noble profession, and some people truly are meant to be lawyers. In order to become a lawyer, you (generally) need to go to law school. So law school isn’t all bad — or is at least a necessary evil — and fair coverage of the world of legal education should reflect this.

Some people truly want to be lawyers. They want to wake up in the morning and look forward to a day of practicing law. Not just the young and naive, all filled with the transitory zeal that lasts until the mortgage payment is due, but those who realize that being a lawyer is hard work. Tell me how you feel about it after five, ten or twenty years of banging your head against a wall, and realizing that the wall usually wins the battle.

The problem can be cut down to size with the realization that pretty much anybody can become a lawyer, but not everybody should. So many of the problems, the race to the gutter, that face lawyers today are caused by the glut combined with the absence of any real calling. No, this is not just a business. No, this is not the guaranteed path to wealth and prestige. No, this is not for everybody who can get into law school or pass the bar.

At the same time, those who denigrate the law as a losing proposition miss the point as well. Their disgust at their situation is misplaced anger, blaming the law for their own poor choice of entering a profession in which they don’t belong. Mark Bennett posts his responses to an angst-ridden twitterer doing document review.

I could have been a contender instead of what I am, a document review attorney.
— TXDocReviewer

No, you couldn’t have been a contender, because that choice was, and remains, available but you’ve chosen your path.

There are thousands of people who need lawyers for one thing or another—family law cases, landlord-tenant disputes, consumer disputes—but can’t find competent counsel because the number of competent lawyers willing to work for $50 an hour is exceedingly small.

Representing people in such disputes is not glamorous—your fellow document reviewers might even call it “shitlaw”—and you’ll never get rich doing it right, but it’s a service to your fellow humans, and you can make a living while working for people who are grateful for your time and your service. Show some competence—hell, show some interest—in such cases, and I’ll spread your name far and wide to our fellow lawyers who would appreciate having someone to refer the small stuff to. Maybe it’ll even grow into something bigger, so that instead of just making a living, you’re a success.

The problem isn’t the law, the unavailability of big money jobs, or the luck of the draw. The problem is that this person should never have been a lawyer in the first place.

Lat is right, a lawyer gets to put “Esq.” after his name. It’s not about the Esq., but about wanting to be the Esq. and about the Esq. being all you need to march your butt out the door every morning and finding a person who needs an Esq. and serving them. If that’s not what you had in mind, or doesn’t pay enough, or isn’t sufficiently prestigious, or just plain makes you feel badly about your sorry lot in life, then the only person you have to blame is yourself.

If you want to be a lawyer, be a lawyer. If not, take your degree and run away as fast as you can. We certainly don’t need more miserable people running around crying about the misery of their lawyer lives, and you are never going to be a “contender”. But if you know all of this about the law, and still want to jump in and do the hard, often painful and occasionally unprofitable work of being a lawyer, it remains a learned and noble profession.

The few of you who feel this way are the ones who were truly meant to be a lawyer. You will find your place in the law, and there will be no wall that will dissuade you. You may never get rich, but you will get your reward.

Being a trench lawyer rather than scholar, and this being a blawg rather than law review (you can tell by the absence of footnotes), it comes as no surprise that the Academy pays no heed to my constant urging that it pull its collective head out of its butt and recognize that things are not swell in the marbled hallways of the ivy-covered buildings in which they toil in wood-paneled offices thinking profound thoughts.

But that’s just me. I’m easily dismissed as just another vulgar lawyer lacking an appreciation of the need for the law school/industrial complex that supports the professorship in its quest for tenure and pedagogic hegemony. What can you expect from those whose brain is too feeble to appreciate the need for theory rather than the nuts and bolts of a trade school? Brian Tamanaha, however, is not so easily dismissed.

Tamanaha is the Chief Judge Benjamin N. Cardozo Professor of Law Professor at St. John’s Law School. After taking note of the blogs of misery and bitterness by disaffected law school graduates, he writes at Balkanization :

Their complaint is that non-elite law schools are selling a fraudulent bill of goods. Law schools advertise deceptively high rates of employment and misleading income figures. Many graduates can’t get jobs. Many graduates end up as temp attorneys working for $15 to $20 dollars an hour on two week gigs, with no benefits. The luckier graduates land jobs in government or small firms for maybe $45,000, with limited prospects for improvement. A handful of lottery winners score big firm jobs.

And for the opportunity to enter a saturated legal market with long odds against them, the tens of thousands newly minted lawyers who graduate each year from non-elite schools will have paid around $150,000 in tuition and living expenses, and given up three years of income. Many leave law school with well over $100,000 in non-dischargeable debt, obligated to pay $1,000 a month for thirty years.

This, of course, is nothing new, except to those law students who were swept into the dream for lack of diligence and excess of optimism. Yet law schools remained bizarrely disconnected, as if this situation had nothing whatsoever to do with them.

Wait a minute, we protest.

Law professors are not scammers. We advance the rule of law and justice. We promote efficient legal institutions. We develop legal knowledge and knowledge about law for the good of society. We are the conscience of the legal profession. Indeed, we made a financial sacrifice to become academics when we could have earned more money as practicing lawyers.

The students made their choices. They should have done more research. They should have thought more carefully about the consequences of taking on so much debt. It was their foolish over-optimism to think they would place among the top 10% of the class and land the scarce corporate law jobs. They should have known better. (If the numbers on our website are misleading it’s the Administration’s fault; and we don’t set the high tuition.) Don’t blame us.

It is their dream to become a lawyer—we provide them with the opportunity and what they make of it is up to them. Besides, a law degree is valuable even if you don’t get a job as a lawyer. It improves your reasoning ability. It opens all kinds of doors.

Isn’t it amazing how mass hysteria will contort even the sharpest minds when it’s in their personal self-interest? The ability to rationalize one of the cushiest jobs in the world distinguishes scholars from trench lawyers. We are subject to the banal rules of supply and demand. The Academy has managed to defy them. You’ve got to give them credit. If we could, we would all thumb our noses at the laws of physics, among other things. Who wouldn’t want to walk the courthouse halls humming “defying gravity?”

More crucially, law schools must shrink the number of graduates, and must hold the line on tuition increases. (The fact that many students get scholarships is no answer because it simply means that some students, those paying full fare—often the students with the worst prospects—are subsidizing others.) This will be painful: smaller raises (perhaps even salary reductions), smaller administrations, smaller faculties, more teaching, less money for research, travel, and conferences.

Oh, so close. As it currently stands, they are putting out 45,000 graduates per year for 30,000 jobs. And the jobs aren’t all that great. The graduates aren’t equipped to do much lawyering, since they are heavily steeped in theory and not expected to gain proficiency in actual lawyer work. But the problem at the outset, the only one Tamanaha is considering, is the just the bottom of the iceberg. Five years, ten years later, it continues. The perpetuation saturates the profession and is, from my seat, the driving force in our race to the bottom.

Too many lawyers. Too many lawyers who either aren’t very good lawyers or don’t have the opportunity to be the good lawyer they might otherwise be, competing for the scarce dollars. Too many good lawyers, hard-working lawyers, still competing for the scarce dollars. A profession reduced to a trade, because even lawyers have to put shoes on their kids’ feet.

I applaud Brian Tamanaha’s fortitude in taking on the orthodoxy of the Academy. Too many others have just hid their head in the sand (or elsewhere) to preserve their lifestyle at the expense of their students and the job they might have been forced to work had they not become one of the elite. There will no doubt be fine minds parsing Tamanaha’s words to prove that the fix will destroy life as we know it, leaving society in ruins without the articulation of an alternative theory of due process at the Ministry of Magic.

While Tamanaha not only recognizes that things have gone awry, and that a melt down is coming if left alone, his solutions don’t go nearly far enough. And as with most painful solutions, it’s best done one time rather than death by a thousand knives.

We are producing far, far too many lawyers. It’s time to cut output by half, both by closing law schools as well as cutting class size. Society doesn’t need them. Society cannot support them. And because we are lawyers, and can cause a lot of trouble with our idle hands, society cannot tolerate them.

But it’s not, as suggested by the disaffected law school graduate blogs, merely a matter of how recent graduates can’t find sufficiently gainful employment. It’s not a simply a matter of tuition being ridiculously high to cover the price of scholarship. It’s far more pervasive, and far more pernicious. These kids just don’t realize how far the problem goes yet as they are stuck at step one. Lawyers ten years out, twenty years out, suffer the long term consequences. Tamanaha is only listening to the squeaky wheels at the moment. Or maybe he’s trying to make it more palatable to his own by limiting this to only the most pressing problems, with the larger problems to be left for another day.

This is not to place blame only on the shoulders of law schools and lawprofs. There’s plenty to go around, from putative law students to experienced lawyers. But the over-production of lawyers is central to the many problematic penumbras the one-time profession faces, and the Academy couldn’t care less what trench lawyers have to say about it, even though we suffer for their choices.

As long as law schools continue to fill every empty chair without regard to what it is doing to the profession for the primary purpose of funding their own lifestyle, we will never stop the slide of the profession into the gutter. And it will inevitably be the end of society’s tolerance for lawyers.

If you won’t listen to me (and we both know you won’t), listen to Brian Tamanaha. Stop denying it. Deal with it. And step back and take the long view of the harm over-production is doing. It’s destroying my profession now. Yours will be next when the pyramid scheme of law school collapses.

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Scott H. Greenfield

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